Why Legal Abortion Should Be Declared Unconstitutional

Antonin Scalia and Clarence Thomas are usually simplistically categorized as the ringleaders of the “conservative” faction on the Court.

But in fact their ideologies are deeply different and in sharp contrast.

Clarence Thomas is an “Originalist.” That means that he believes that the Constitution of the United States should be interpreted as its authors understood it. His opinions are typically littered with quotes from the Federalist Papers, letters written by the Founders, and, most important of all, the Declaration of Independence.

The Founders viewed the Declaration of Independence as the document that set the guiding principles of the United States — a belief in “the laws of Nature and of Nature’s God” and a belief that “all men are created equal and are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” When the Declaration of Independence was signed, every state in the Union had legal slavery. In other words, no one was living up to the principles that the document espoused. Once it was signed, abolition movements sprung up in each of the states to phase slavery out of existence. The northern states, which were more Puritan and less dependent on slaves, were much more successful at abolition than the southern states.

When the Constitution was written, it was a flawed concession to the politically necessary evil of slavery, which violated the Declaration. Therefore, the Founders viewed the Constitution as a temporary step in a journey towards the fulfillment of the Declaration of Independence. In order for this fulfillment to be achieved, they needed a Union (represented by the Supremacy Clause, which made the Constitution a binding document on the States) and a set of policies that would gradually phase out slavery, the nation’s Original Sin. The foremost of these was the eventual ability to abolish the slave trade.

The principles of federalism were real but were made as concessions to political realities. Unfortunately, Abraham Lincoln had to fight the Civil War before the Populist principles articulated in the Declaration of Independence were incorporated into the Constitution via the 14th Amendment. Article 1 states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Federalism was a critical principle to the Founding. However, the 14th Amendment established the fact that “states rights” never trump “human rights.”

According to the provisions of the 14th Amendment and the fact that human beings assume their unique identity when they become genetically human at conception, legal abortion is unconstitutional in spite of the fact that the Supreme Court refuses to accurately apply the 14th Amendment. The unborn are being deprived of the right to life without due process of the law. It violates the 14th Amendment and the Declaration.

Clarence Thomas has indicated a willingness to declare abortion unconstitutional as proscribed by the 14th Amendment.

Unfortunately, Antonin Scalia disagrees.

As a “constructionist” he believes the Constitution with its principle of federalism is the most critical moral document in the American founding. He believes the Constitution should be strictly interpreted independent of the intent of its authors.

Because personhood is not defined as beginning at conception, abortion is not unconstitutional.

He believes that the Roe v. Wade should be overturned and the matter should simply be left to the states.

That was not how slavery was resolved. And that is not how abortion should be resolved

At issue is the question: what is the guiding principle of the interpretation of the Constitution — the strict language of the Constituion and Federalism or the intent of its authors most clearly articulated in the Declaration of Independence and Populism.